Defense for Sheik and Aide Is Suspicious of Tape Gaps

By WILLIAM GLABERSON

Published: January 5, 2005

Lawyers for a Yemeni sheik and an aide who are charged with financing terrorism said yesterday that there were gaps in secretly recorded tapes that are at the heart of the prosecution's case, and suggested that they may have been doctored.

''There are many gaps we can't explain,'' Jonathan Marks, a defense lawyer, said in Federal District Court in Brooklyn. He added that one recording ''may have been doctored in such a way'' as to obscure a conversation that could help the defense.

A prosecutor, Kelly Moore, acknowledged that there were gaps on the tapes, which were recorded surreptitiously by law enforcement agents, but said they were only a few seconds in length.

She said that the gaps had been caused ''by some sort of electrical short,'' and that the suggestion that agents had created the gaps to eliminate conversations that would hurt the prosecutors' case was ''basically absurd.''

William H. Goodman, another defense lawyer, said that on at least one of a series of recordings made by agents in a hotel in Frankfurt, there was one gap of nearly a minute. He said the gaps might have covered up statements made by the defendants ''that may be extremely helpful to the defense.''

The remarks did not prompt any ruling from the judge, Sterling Johnson Jr. They were made at a routine hearing before the trial of the two defendants, Sheik Mohammed Ali Hassan al-Moayad and his aide, Mohammed Mohsen Yahya Zayed.

Jury selection is to begin Monday. The charges, which claim that the men raised millions of dollars at mosques in Brooklyn and elsewhere, drew international attention when they were announced in 2003 by Attorney General John Ashcroft. The men are charged with providing money to Al Qaeda, Hamas and other terrorist organizations.

The case made news again in November when the government's main informer, Mohamed Alanssi, a Yemeni with a troubled past that included bad debts and criminal charges , set himself on fire outside the White House, partly because of a dispute with the F.B.I. over his treatment. Prosecutors have since suggested that they may not call him as a witness.

The recordings at issue yesterday were made by law enforcement agents who secretly monitored meetings among Mr. Alanssi, a second informer, the sheik and Mr. Zayed. The second informer was posing as a former Black Panther eager to contribute to terrorist causes.

Because of concerns about security, Judge Johnson granted a prosecution request that the jury be anonymous. At every hearing, armed marshals have appeared at the courthouse doors.

Judge Johnson made a series of rulings yesterday that favored the prosecutors. He also ruled that if Mr. Alanssi did not appear as a witness, the defense would not be able to raise questions about his credibility.

As the likelihood of Mr. Alanssi's testimony seemed to fade, much of the focus has shifted to the tape recordings. Prosecutors said they showed that the two Yemeni men had eagerly agreed to accept donations for terrorist causes.

Mr. Marks, who represents Mr. Zayed, has said he will argue that his client was entrapped. Yesterday, he said it was the informers who first suggested making contributions to terrorist organizations during the Frankfurt meetings.

But another prosecutor, Jeffrey Knox, argued that the defense had yet to show that the sheik and Mr. Zayed needed prompting.

Mr. Knox said the tapes showed that even before meetings with the informers, the sheik and Mr. Zayed were recorded speaking to each other about topics like the sheik's ties to Osama bin Laden and the need to use code in discussing such topics.

Mr. Knox said the tapes showed Sheik Moayad saying that words like ''corn'' should be used, for example, when discussing weapons.

Quoting from a transcript, Mr. Knox said the sheik explained how to discuss weapons. ''We need corn,'' he quoted the sheik as saying. ''The corn is about to run out soon.''